Substituted Service: Ex-AFP Chief Fabian Ver Deprived of Procedural Due Process

SC: Ex-AFP Chief Fabian Ver, et al. Deprived of Procedural Due Process in Damages Case

sc.judiciary.gov.ph

The Supreme Court recently ruled that former Armed Forces of the Philippines (AFP) Chief of Staff Fabian Ver and other subordinate AFP officers were deprived of procedural due process in a case for damages filed by former military detainees. The Court consequently affirmed the decision of the (CA) Court of Appeals, which directed the remand of the case to the lower court for further proceedings.

In a 24-page decision penned by Justice Jose Catral Mendoza, the SC’s Third Division denied the appeal of several suspected subversives who were arrested and detained by the military from the aforesaid CA ruling. The Court ruled that the respondents Ver, et al. had been completely deprived of due process when they were declared by the trial court in default based on a defective mode of service—service of notice to file answer by publication.

In 1993, the Regional Trial Court (RTC) of Quezon City handed down a decision in favor of the petitioners, and ordered respondents Ver, et al. to pay jointly and severally to some of the petitioners the amount of Php350,000 each as damages. However, several respondents appealed to the Court of Appeals (CA), and argued that they were deprived of the opportunity to be heard. The CA ruled that the RTC erred in declaring the respondents in default after it authorized service by publication of a notice to file answer, a mode of service that is not provided for in the Rules of Court, and reversed and set aside the RTC decision.

In ruling for respondents, the Court said “the rules on service of pleadings, motions, notices, orders, judgments, and other papers were not strictly followed in declaring the respondents in default.” The Court also agreed with the CA that the RTC committed procedural lapses in declaring the respondents in default and in allowing the petitioners to present evidence ex-parte.


The Court noted that the RTC issued an order dated August 17, 1990 directing the petitioners to report the addresses and whereabouts of the respondents so that they would be properly notified of the proceedings. The Court agreed with the observation of the CA that such order was an attempt to serve a notice to file answer on the respondents by personal service and/or by mail. However, the Court found that “these proper and preferred modes of service” were never resorted to because the OSG abandoned them when the petitioners failed to comply with the August 17, 1990 RTC order.

Nevertheless, the Court pointed out that there was still another less preferred but proper mode of service available — substituted service — which is service made by delivering the copy to the clerk of court, with proof of failure to both personal service and service by mail. “Unfortunately, this substitute mode of service was not resorted to by the RTC after it failed to effect personal service and service by mail. Instead, the RTC authorized an unrecognized mode of service under the Rules, which was service of notice to file answer by publication,” the Court found.

The Court also stressed that the RTC should have been more patient in notifying the respondents through personal service and/or service by mail. “It should not have simply abandoned the preferred modes of service when the petitioners failed to comply with its August 17, 1990 order with the correct addresses of the respondents. More so, it should not have skipped the substituted service prescribed under the Rules and authorized a service of notice on the respondents to file answer by publication,” the Court added. The Court also noted that personal service to the respondents is practicable under the circumstances considering that they were well-known persons who used to occupy high government positions.

In their petition to the Court, petitioners argued that the publication was a valid and justified procedure because following the ruling of the RTC, it was “an extra step to safeguard the interest of the defendants done pursuant to the inherent power of the courts to control its proceedings to make them comfortable to law and justice.” However, the Court ruled that the exercise of such inherent power must not violate basic court procedures, and must not disregard one’s basic constitutional right to procedural due process.

The petitioners also contended that the respondents were well represented by counsel from 1983 up to December 1990; that the respondents were properly notified of the entire proceedings through their counsel; that the respondents’ counsel was negligent for failing to file an answer within the prescribed period; and that the negligence of the OSG binds the respondents. Nevertheless, the Court held that while the OSG only filed a notice of withdrawal only on December 11, 1990, the respondents were in effect no longer represented by counsel as early as April 15, 1998 when its decision on the instant case was rendered, or much earlier, right after the 1986 EDSA Revolution due to the change in government. The Court said that the OSG’s withdrawal of representation, due to the unique scenario of this case, is not equivalent to professional delinquency or ignorance, incompetency or inexperience or negligence and dereliction of duty.
The Court also held that the entire records of the case at bar tend to show that the respondents were completely out of the picture until after the promulgation of the RTC decision finding them liable for damages.

The Court added that though it commiserates with the petitioners’ plight and cry for justice, the Court found itself unable to grant their plea “because the fundamental law clearly provides that no person shall be deprived of life, liberty and property without due process of law.”

Concurring in the decision are Justices Presbitero J. Velasco, Jr., Diosdado M. Peralta, Roberto A. Abad, and Estela M. Perlas-Bernabe. (GR No. 166216, Aberca v. Ver, March 14, 2012)

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